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Simultaneous registrations

4 October 2012

For financial reasons, the question of the time of registration of deeds such as transfers and bonds, and particularly their simultaneous registration, is of utmost importance. Provision is made in the Deeds Registries Act 47 of 1937 (the Act) to provide for this. The section dealing with registration is section 13 and this section provides that deeds which are executed (that is, deeds where there is no appearer) or attested (that is, deeds which are signed by an appearer) by the Registrar are deemed to be registered, as the case may be, when the Registrar signs the deed in question (section 13(1)). The section further provides that registration of deeds, documents or powers of attorney is deemed to have taken place when the Registrar signs the endorsement in respect thereof.

Registration, therefore, can be said to take place when the Registrar signs the deed or endorsement in question, and where there are a number of interdependent deeds when all the deeds or endorsements have been signed. Thus where A passes transfer to B, cancels his bond in favour of C, and B passes a new bond in favour of D, registration takes place only when the Registrar has signed both the transfer, the bond, and all endorsements relating to such transfer and bond, and the cancellation of the existing bond. Section 13(3) provides that all endorsements and entries in registers are deemed to have been made simultaneously with signature by the Registrar (whether by means of execution, attestation, or signing of the registration endorsement). If by inadvertence the Registrar’s signature has been omitted from any deed, document, endorsement or a power of attorney, the Registrar whose signature makes good the omission need not, having regard to the definition in section 102, be the same Registrar. The omission of a conveyancer’s signature has been permitted to be rectified subsequently (Ex parte Heinen, 1914 C.P.D. 200) and provided it is clear that this is a formal defect, can be remedied under section 100 of the Act.

There are several provisions in the Act and regulations which are worthy of note. Section 13(2) permits the Registrar to sign a deed or endorsement which he has omitted to sign by inadvertence. Regulation 63(3) requires simultaneous executions or registrations to be clearly indicated on the deeds lodged. Regulation 45(4) provides that where mortgage bonds are executed on the same day over the same property and no ranking is disclosed, the Registrar must state the time of execution of each.

Sequence of registration
Section 14 of the Act provides that every transfer of land or cession of rights therein must be registered, unless the Court or another law provides otherwise.

In the early days, registration was generally not necessary except when transfer duty was payable. However, section 14 of the Act now requires the sequence of all transactions to be followed. In fact it was introduced by reason of the dictum in Ex parte van Schoor, 1935 T.P.D. 316, and was contrary to long established practice in all Deeds Registries. The section now prevents the omission of intermediate transfers and cessions when successive transactions and vestings by succession have taken place in connection with land or real rights therein, and it has been stated that the section affirms and clarifies the principle laid down in In re Hitzeroth’s Est., 6 C.T.R. 383 at p. 384. It thus ensures that the whole history of the land is registered and has certain advantages, primarily that of protecting revenue and ensuring that duty is paid on every transaction. For Example, if prior to the enactment of section 14, A sold to B and B sold to C his rights under the deed of sale, a direct transfer could be passed from A to C (Ex parte van Schoor, 1935 T.P.D. 316). Section 14 renders this inadmissible (Cricklewood Investments, Ltd. v Rand Townships Registrar, 1946 W.L.D. 381). Where, however, applicant as cessionary had acquired all the right, title and interest in certain immovable property under a deed of sale, and the estate of the original purchaser was sequestrated the Court authorised transfer directly from the owner to the applicant (Ex parte Brucken, 1952 (3) S.A. 227 (W.)). Where heirs in an estate agreed with the trustees to continue a trust after its termination, the Court held in Ex parte Wiggins N.O. and Another, 1955 (3) S.A. 157 (N.), that no contravention of the section was occasioned where the trustees passed transfer direct to purchasers.

This section applies not only to land but also to real rights in land. A cession of a mortgage bond, if not coupled either with delivery of the bond or registration of the cession, is not a real right in land and this fact appears to be recognised in regulation 41(5) since all prior cessions of a bond need not be registered.

Allen West
Deeds Training
Pretoria

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